Mr. Dattatrey Shivaji Mane vs Mrs. Lilabai Shivaji Mane And Ors
2018 Latest Caselaw 1269 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.10611 OF 2018

Dattatrey Shivaji Mane                     )
R/a. 502, 5th Floor, B-Wing,               )
Darshan Heights, Zavaba Wadi,              )
Thakurdwar, Girgaon, Mumbai.               )           .. Petitioner

       Versus

1. Lilabai Shivaji Mane                    )
R/a. 502, 5th Floor, B-Wing,               )
Darshan Heights, Zavaba Wadi,              )
Thakurdwar, Girgaon, Mumbai.               )

2. Dy.Collector/Officer,             )
Parents and Senior Citizen's Welfare )
Tribunal, Mumbai City,               )
Old Custom House, Shahid Bhagatsingh)
Road, Fort, Mumbai.                  )

3. State of Maharashtra               )
(Notice to be issued upon Government)
Pleader, Appellate Side, (Writ Cell), )
High Court, Mumbai.                   )   .. Respondents
             ---
Mr.J.P. Kharge for the petitioner.
Mr.Sandeep Naik for the respondent no.1.
Mr.S.D.Rayrikar, AGP for the respondent nos.2 & 3.
             ---
                                CORAM : R.D. DHANUKA, J.

DATE : 26th June 2018 Judgment :-

. By this petition filed under Article 227 of the Constitution of

India, the petitioner has impugned the order dated 1st February 2018

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passed by the Tribunal for Welfare of Parents and Senior Citizens on a

complaint filed by the respondent no.1 who is the mother of the petitioner

no.1, under the provisions of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 (for short "the said Act").

2. It is the case of the petitioner that the petitioner has been

staying in the tenament i.e. Room No.502, 5 th floor, B-Wing, Darshan

Heights, Zavaba Wadi, Thakurdwar, Girgaon, Mumbai along with his

wife, son, daughter and the respondent no.1. Admittedly the said

tenament belongs to the respondent no.1 exclusively.

3. The respondent no.1 filed a complaint against the petitioner

inter alia praying for maintenance and eviction of the petitioner on

various grounds. The said complaint was resisted by the petitioner. The

Tribunal passed an order on 1 st February 2018 thereby directing the

petitioner and his other family members to evict themselves from the

said tenament within 30 days from the date of the said order and hand

over vacant possession thereof to the respondent no.1. This order of the

Tribunal is impugned by the petitioner in this petition under Article 227

of the Constitution of India.

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4. Learned counsel appearing for the petitioner challenged the

said order on the ground that the complaint was filed by the respondent

no.1 against the petitioner only whereas in the impugned order, the

Tribunal has passed the impugned order of eviction also against the

wife, son and daughter of the petitioner from the suit premises which is

not permissible in law.

5. The next submission of the learned counsel for the petitioner

is that under Section 4 of the said Act, the Tribunal has no jurisdiction to

evict the petitioner as well as his family members from the tenament

owned by the respondent no.1. The entire order is thus without

jurisdiction.

6. The next submission of the learned counsel for the petitioner

is that the petitioner has been maintaining the respondent no.1 for last

several years. The respondent no.1 has been harassing the petitioner and

his family members. All the criminal complaints filed by the respondent

no.1 against the petitioner and his family members are disposed of. The

complaint filed under the provisions of the Protection of Women from

Domestic Violence Act, 2005 against the petitioner is dismissed for

default.

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7. It is submitted by the learned counsel for the petitioner that

the respondent no.1 has been independently earning substantial amount

and thus could not seek any relief against the petitioner by filing a

complaint under Section 4 of the said Act.

8. Learned counsel appearing for the respondent no.1, on the

other hand, submits that because of mental torture and continuous

harassment to the respondent no.1 by the petitioner and his family

members, the respondent no.1 has filed several complaints against them

in last ten years. The Tribunal however has not taken any action on those

complaints filed by the respondent no.1 against the petitioner and his

family members.

9. In so far as the complaint filed by the respondent no.1 under

the provisions of the Protection of Women from Domestic Violence Act,

2005 against the petitioner is concerned, the said complaint has been

dismissed for default and not on merit.

10. Learned counsel for the respondent no.1 submits that even

during the pendency of this petition, the petitioner had caused physical

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hurt to the respondent no.1 and thus the respondent no.1 was compelled

to file a police complaint against the petitioner with the concerned police

station.

11. Learned counsel for the respondent no.1 placed reliance on

the judgment of the Delhi High Court in the case of Sunny Paul &

Anr. Vs. State Nct of Delhi & Ors. delivered on 15th March 2017 in

Writ Petition (C) No.10463 of 2015 and also another judgment of the

Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr.

delivered on 24th November 2016 in RSA 136 of 2016. He submits that

the tribunal has ample power to pass an order of eviction against the

persons under the provisions of the said Act from the tenament in which

the respondent no.1 has right, title and interest.

12. Learned counsel for the respondent no.1 submits that on one

hand, the petitioner or his wife who allegedly earns income of

Rs.12,000/- per month, on the other hand, he has been paying substantial

amount of eduction fees of his child and has been living lavishly. The

respondent no.1 does not have any major source of income and cannot

be forced to permit the petitioner and his family members to occupy

the tenament owned by her.

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13. It is not in dispute that the respondent no.1 has exclusive

rights in the tenament which is allowed to the occupied by the petitioner

and his family members by the respondent no.1. It is not in dispute that

the respondent no.1 has filed several police complaints against the

petitioner and his family members in various police stations alleging

harassment and other offences. The complaints filed against the petitioner

under the provisions of the Protection of Women from Domestic Violence

Act, 2005 has been dismissed not on merit but for default.

14. Learned counsel for the petitioner could not point out any

legal right of his client to occupy the tenament owned by the respondent

no.1 under the provisions of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 or under any other provisions of law. The

submission of the petitioner is that since the petitioner has been

allegedly maintaining the respondent no.1 for last several years, no order

of eviction could be passed by the tribunal under Section 4 of the said

Act or under any other provisions of the said Act. Per contra, the

respondent no.1 has produced sufficient material on record before this

Court and also the Tribunal showing that the respondent no.1 has been

harassed by the petitioner and his family members for last several years.

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15. In so far as the submission of the learned counsel for the

petitioner that since no complaint was filed by the respondent no.1

against the wife, son and daughter of the petitioner before the Tribunal,

no order could be passed by the Tribunal against the other family

members of the petitioner is concerned, in my view, there is no merit in

this submission of the learned counsel for the petitioner. Section 4 of

the said Act permits a senior citizen including parent who is unable to

maintain himself from his earning or out of property owned by him

and if such senior citizen is unable to lead a normal life to apply for

such relief not only against his children but also the grand children. Be

that as it may, the wife, son and daughter of the petitioner have not

challenged the impugned order.

16. In so far as the complaints filed by the respondent no.1

which are alleged to have been disposed of are concerned, it is the case

of the respondent no.1 that the concerned police station did not take any

action on those complaints filed by her. The petitioner does not dispute

that those complaints were filed by the respondent no.1 against the

petitioner making serious allegations of harassment and other offences.

Merely because the police station has not taken any action on those

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complaints, the petitioner cannot be allowed to urge that he and his

family members had not harrassed or tortured the respondent no.1.

17. Learned counsel for the respondent no.1 states that his client

wants to evict the petitioner and his family members from her premises

to stop the harassment and torture in future, from the petitioner and his

family members, for peace of mind and to lead a normal life and does not

want any maintenance from the petitioner henceforth. Statement is

accepted.

REASONS AND CONCLUSIONS :-

18. A perusal of the record indicates that it is an admitted

position that even according to the petitioner, the petitioner had been

requesting the respondent no.1 for entering the names of his son and

daughter in the ration card in respect of the said tenament which the

respondent no.1 has refused. According to the petitioner, it has been an

apprehension in the mind of the respondent no.1 that if the names of

the son and daughter of the petitioner were entered in the ration card, the

petitioner and his children would claim right in the said tenament owned

by her. The petitioner could not show any right of any nature whatsoever

in the said tenament of the respondent no.1 under any provisions of law.

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19. In the complaint filed by the respondent no.1 before the

Tribunal, the respondent no.1 had alleged that the petitioner and his

family members were beating the respondent no.1 and had caused

injuries to the hand and leg of the respondent no.1. It was further alleged

that the petitioner and his family members are trying to oust the

respondent no.1 from her house. The respondent no.1 was prevented

from using her house by the petitioner and his family members. It was

alleged by the respondent no.1 in the said complaint that the petitioner

and his family members also prevented the respondent no.1 from using

toilet and were closing the water tap.

20. A perusal of the complaint dated 7 th April 2007 filed by the

respondent no.1 with L.T. Marg Police Station indicates that the

respondent no.1 had alleged that the petitioner and his wife used to beat

her regularly and also abusing her. Copies of all such complaints

against the petitioner lodged by the respondent no.1 with the local

police station were already annexed to the application filed by the

respondent no.1 and are forming part of the record of the writ petition

filed by the petitioner.

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21. A perusal of the record clearly indicates that the relationship

between the respondent no.1 and the petitioner and his family members

are very strained resulting in the respondent no.1 filing various police

complaints against the petitioner. In these circumstances, the respondent

no.1 who is 73 years old cannot be compelled to allow the petitioner and

his family members to stay with her. It is exclusively for the respondent

no.1 to decide whether she wants to permit the petitioner and his family

members to stay with her or not. In this case, the respondent no.1 has

decided not to allow the petitioner and his family members to stay with

her in the house owned by her. In my view, the Tribunal was thus fully

justified in passing an order of eviction not only against the petitioner but

also other family members of the petitioner.

22. The provision of Section 4 of the said Act permits such

application for eviction of child and grand child if the condition set out in

that provision read with other provisions are satisfied. In my view, there

is thus no substance in the submission of the learned counsel for the

petitioner that the order of eviction cannot be passed by the Tribunal

under Section 4 of the said Act read with other provisions of the said Act.

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23. The Objects and Reasons of the Maintenance and Welfare

of Parents and Senior Citizens Act, 2007 read thus :-

"1. Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.

2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up old age homes for providing maintenance to the indigent older persons.

The Bill further proposes to provide better medical facilities to the senior citizen and provisions for protection of their life and property.

3. The Bill, therefore, proposes to provide for :-

(a) appropriate mechanism to be set-up to provide need- based maintenance to the parents and senior citizens;

(b) providing better medical facilities to senior citizens;

(c) for institutionalisation of a suitable mechanism for protection of life and property of older persons;

(d) setting-up of old age homes in every district.

4. The Bill seeks to achieve the above objectives."

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24. In so far as the submission of the learned counsel for the

petitioner that under Section 4 of the said Act, no order of the eviction

can be passed by the Tribunal but the said provision could be invoked

only for the purpose of making a claim for maintenance is concerned,

Delhi High Court in the case of Sunny Paul & Anr. Vs. State Nct of

Delhi & Ors. (supra) has considered the said issue at great length and

has held that the claim for eviction is maintainable under Section 4 of

the said Act read with various other provisions of the said Act by a

senior citizen against his children and also the grand children.

25. If the argument of the learned counsel for the petitioner is

accepted by this Court then no senior citizen who has been meted out

with harassment and mental torture will be able to recover possession of

his/her property from the children or grand children during his/her

lifetime. The said Act is enacted for the benefit aand protection of senior

citizen from his children or grand children. The principles of law laid

down by the Delhi High Court in the case of Sunny Paul & Anr. Vs.

State Nct of Delhi & Ors. (supra) would squarely apply to the facts of

this case. I respectfully agree with the views expressed by the Delhi High

Court in the said judgment.

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26. Delhi High Court in the case of Sunny Paul & Anr. Vs.

State Nct of Delhi & Ors. (supra) has adverted to the another judgment

of the Delhi High in the case of Nasir Vs. Govt. of Nct of Delhi & Ors.

-2015 (153) DRJ 259 and also the judgment of Gujarat High Court in

the case of Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram

Meswania - AIR 2013 Gujarat 160.

27. Delhi High Court in the case of Nasir Vs. Govt. of NCT of

Delhi & Ors. (supra) while dealing with the matter under the provisions

of the same Act and has held that once it is found that a senior citizen

was the owner of the subject property, no error can be found with the

directions issued by the Tribunal restraining the child of such senior

citizen from interfering with the possession of the senior citizen who was

the mother of the petitioner in that matter occupying the property and/or

from recovering the rental income of the other property and further

directing the son to maintain peace in the house and not to disturb his

aged mother. It is held that in such situation, if it is said that the

respondent mother ought to have been relegated by the Tribunal to the

Civil Court, the same would have been in negation of the very purpose of

setting up of such Tribunal. It is held that while interpreting the

provisions, object of the Act has to be kept in mind which is to provide

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simple, inexpensive and speedy remedy to the parents and senior citizens

who are in distress, by a summary procedure. The provisions have to be

liberally construed as the primary object is to give social justice to parents

and senior citizens.

28. Delhi High Court in the said judgment has adverted to the

judgment of the Supreme Court in the case of Board of Muslim Wakfs,

Rajasthan Vs. Radha Kishan- 1979(2) SCC 468 in which Supreme Court

has held that the construction which tends to make any part of the statute

meaningless or ineffective must always be avoided and the construction

which advances the remedy intended by the statute should be accepted. In

my view, the principles of law laid down by the Delhi High Court in the

case of Nasir Vs. Govt. of NCT of Delhi & Ors. (supra) and the

judgment of the Supreme Court in the case of Board of Muslim Wakfs,

Rajasthan Vs. Radha Kishan (supra) apply to the facts of this case. I am

in respectfully agreement with the views expressed by the Delhi High

Court in the said judgment. The principles of law laid down by the

Supreme Court in the aforesaid judgment are binding on this Court.

29. Gujarat High Court in the case of Jayantram Vallabhdas

Meswania Vs. Vallabhdas Govindram Meswania (supra) while dealing

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with a writ petition filed by the son of a senior citizen has construed

Sections 4, 23 and various other provisions of the said Act. The son was

occupying the property of his father who was admittedly a senior citizen.

The said senior citizen needed to generate earning/income from the said

part of the premises which were occupied by his son. Son was not

maintaining the father. Gujarat High Court considered the objects and

reasons of the said Act and held that son had not claimed any right of,

or protection as statutory tenant or otherwise in respect of the said

premises owned by the father. It is held that while explaining the object

behind the enactment of the Act, the Legislature has clarified that, "the

Bill proposes to cast an obligation on the persons who inherit the property

of their aged relatives to maintain such aged relatives. The Bill further

proposes to provide better medical facilities to the senior citizens and

provisions for protection of their life and property."

30. After adverting to the objects and reasons of the said Act,

Gujarat High Court has held that on overall consideration and having

regard to the provision under Sections 2(b), 2(d), 2(f), 4 and the object of

the Act, the said term should receive wider meaning so as to include

possession/occupation of property, as well. The said concept is already

recognised, accepted and internalised by the Act vide Section 4 of the

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Act. It is held that the provisions under Section 23 of the Act cannot be,

and need not be, read in isolation or by divorcing the said provision from

other provisions, particularly Section 4 of the Act read with Sections 2(b),

2(f), 2(g) & 2(h) of the Act. Gujarat High Court accordingly rejected the

writ petition of the son impugning the order of the Tribunal directing

him to hand over possession of the property to the father and held that

the said order passed by the Tribunal to hand over possession could not

be said to be without jurisdiction or beyond the scope of Section 23

read with Sections 4, 2(b), 2(d) and 2(f) of the Act. In my view, the

principles of law laid down by the Gujarat High Court Jayantram

Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania (supra)

applies to the facts of this case. I am in respectfully agreement with the

views expressed by the Gujarat High Court in the said judgment.

31. In my view, Section 4 cannot be read in isolation but has to

be read with Section 23 and also Sections 2(b), 2(d) and 2(f) of the said

Act. The respondent no.1 mother cannot be restrained from recovering

exclusive possession from her son or his other family members for the

purpose of generating income from the said premises or to lead a normal

life. In my view, if the respondent no.1 mother who is 73 years old and

is a senior citizen, in this situation, is asked to file a civil suit for recovery

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of possession of the property from her son and his other family members

who are not maintaining her but are creating nuisance and causing

physical hurt to her, the whole purpose and objects of the said Act would

be frustrated.

32. In my view, since under Section 23 of the said Act, a senior

citizen is entitled to apply for a declaration of gift or transfer of his/her

property by any other means given subject to the condition that the

transferee shall provide the basic amenities and basic physical needs to

such senior citizen and such child or grand child refuses to provide such

amenities and physical needs, such senior citizen can apply for

declaration of such transaction to be void, such senior citizen can even

apply for recovery of possession from her child or grand child in the

event of the child refusing to maintain such senior citizen and parents

or does not comply with the obligations extending to the needs of senior

citizen or such parents to enable such senior citizen or parents to lead a

normal life. Such parents and senior citizen can certainly apply for

recovery of vacant possession of the property and for a relief restraining

such child or grand child or his other family members who are claiming

through such child from entering upon the property of such senior

citizen or parents. In my view, there is thus no merit in the submission

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of the learned counsel for the petitioner that the Tribunal could not have

passed an order of eviction against the petitioner and his family members

from the tenament owned by the respondent no.1 under the provisions

of the said Act.

33. Delhi High Court in the case of Sachin & Anr. Vs. Jhabbu

Lal & Anr. (supra) has held that where the house is self acquired house

of the parents, son whether married or unmarried, has no legal right to

live in that house and he can live in that house only at the mercy of his

parents upto the time the parents allow. Merely because the parents have

allowed him to live in the house so long as his relations with the parents

were cordial, does not mean that the parents have to bear his burden

throughout his life. The principles of law laid down by the Delhi High

Court in the case of Sachin & Anr. Vs. Jhabbu Lal & Anr. (supra)

would squarely apply to the facts of this case. In my view, no child can

compel his parents and more particularly senior citizen to allow such

child or grand child to stay with him.

34. The impugned order passed by the Tribunal is in conformity

with the powers granted to such Tribunal under Section 4 read with

other provisions of the said Act. I do not find any infirmity in the

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impugned order. The petition is devoid of merit and is accordingly

dismissed. No order as to costs.

35. In view of the fact that the impugned order of the Tribunal

is upheld, the said order shall be complied with by the petitioner and by

other occupants i.e. his wife, son and daughter within two weeks from

today and shall hand over vacant possession to the respondent no.1

without fail. If the order is not complied with by the petitioner and his

family members, the said order shall be executed by the respondent no.1

with the assistance of the police, if required. Parties as well as the

Tribunal to act on the authenticated copy of this order.

R.D. DHANUKA, J.